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Showing 81 to 100 of 1740 Records
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2019 (9) TMI 1666
Admissibility of petition - Arbitral Award - financial creditor - it was submitted that an Arbitral Award cannot be treated as a ‘financial debt’ - initiation of CIRP against two sets of Corporate Debtor for the same set of claim - HELD THAT:- The appeal is dismissed.
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2019 (9) TMI 1665
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - time limitation - HELD THAT:- It is evident that despite notice sent by the OC to CD, on 13.11.2017 and which it is stated to have been delivered on the next day and despite receipt of demand notice, since no payment has been received nor reply sent denying the claim as raised by the OC against the CD, the Petitioner is before this Tribunal seeking for the initiation of Corporate Insolvency Resolution Process (CIRP) of the CD.
Upon notice, the Corporate Debtor is being represented by Mr. Ritwil Mittal, Advocate, who has filed reply to the main Company Petition, more particularly, preliminary objections have been raised for the maintainability of the Petition on the grounds of limitation.
This Tribunal is of the view that the Debit Note which has been raised on 31.3.2016 and which has been incorporated in the Ledger Account has been made for the purpose of these proceedings and which clearly shows that this Petition is time barred and obviously filed beyond the period of limitation.
Petition dismissed.
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2019 (9) TMI 1664
TP Adjustment - comparable Companies selection - HELD THAT:- In facts of present case, assessee is doing part of software development cycle and therefore has been categorised as a captive software development service provider catering to needs of the group. Assessee in TP study held to be comprise of Software Engineers, who develop project based on inputs received from AE.
Engineers employed by assessee designs functional specifications for the project identification of interfaces components coding and bug fixing. Ultimate approval and owner of project developed is the AE. In our view, by involving itself in process of Software development for AE, assessee cannot be held to be fulfledged Software Development Company. One has to look into transaction in regards to services rendered and FAR, which catagorises it to be a captive service provider, working on business model of cost plus margin.
It is observed that comparables sought to be excluded are 100 % Software Development Companies, having high turnover and therefore respectfully following aforestated view in case of Genesis Integrating Systems India Pvt. Ltd., [2011 (8) TMI 952 - ITAT BANGALORE] these comparables are to be excluded on both the counts of functionally not being similar with that of assessee and also because they have a high turnover of more than 200 crore. For assessment year 2009-10, excluded these companies following Genesis Integrating systems Indi Pvt. Ltd vs. DCIT [2011 (8) TMI 952 - ITAT BANGALORE]
Reliance has been placed on decision of this Tribunal in case of Autodesk India Pvt.Ltd. [2018 (7) TMI 1862 - ITAT BANGALORE] followed similar view to exclude identical comparables by applying turnover filter, wherein all the decisions relied upon by Ld. CIT DR has been considered and dealt with.
Therefore, respectfully following above decisions, we uphold exclusion of Infosys Ltd, Larsen & Toubro Infotech Ltd., and Persistent Systems Ltd., by Ld. CIT (A) from final list.
Now coming to Zylog Systems Ltd., Mindtree Ltd. held that, turnover is a relevant criteria for choosing companies as comparables for determining ALP of international transaction.
Even otherwise, all above referred comparables are functionally not similar with that of assessee, which is only a captive software development service provider, which does not design/develop/sell software products and does not own any IP. We therefore uphold exclusion of this comparable is by Ld. CIT (A).
Disallowing depreciation as an adjustment in comparables - For assessment year 2005-06 in assessee’s own case when this issue was remanded by this Tribunal is Ld.TPO/AO had inter alia granted the adjustment on depreciation after taking into consideration the detailed working submitted by assessee and held that instead of allowing any adjustment on this account, the AO is directed to compute the margin in respect of the comparables after excluding the depreciation from the cost and also in the case of the appellant the depreciation to be excluded from the cost for computing the arm’s length difference. The appeal on the above issue is disposed accordingly.
TDS u/s 194J - disallowance under section 40 (a) (ia) - not deducting tax at source at the time of purchase of software - HELD THAT:- This issue stands settled against assessee is by decision of this Tribunal in case of DCIT vs WS Atkins India Pvt.Ltd. [2015 (11) TMI 917 - ITAT BANGALORE] and Kawasaki Microelectronics Inc [2015 (9) TMI 9 - ITAT BANGALORE]
Disallowance u/s 14 A read with Rule 8D - HELD THAT:- As submitted that there is no exempt income earned by assessee during year under consideration. Both parties admittedly submitted that, issue stands squarely covered by decision of Hon’able Delhi High Court in case of Cheminvest Ltd vs CIT [2015 (9) TMI 238 - DELHI HIGH COURT]
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2019 (9) TMI 1663
Depreciation claimed on brand value - AO disallowed depreciation on the brand value due to the fact that no cost has been incurred to acquire brand value - As submitted that petitioner had got strong prime facie case in its favour since depreciation on the brand value is intangible asset eligible for depreciation - HELD THAT:- From the perusal of the assessment order, it is clear that the AO had disallowed depreciation citing that no cost was incurred in acquisition of intangible asset namely brand value.
It appears that the issue in the present appeal is covered against the assessee company by the decision of Co-ordinate Bench of the Tribunal in the case of RMKV Fabrcis. [2019 (4) TMI 2072 - ITAT CHENNAI] - Therefore, the submissions made on behalf of the petitioner that there is strong prime facie case in favour of the petitioner cannot be accepted. The petitioner had not made out any case satisfying other two factors namely balance of convenience and financial hardship. It is settled position of law that Tribunal or Court cannot grant stay of demand if the assessee fails to satisfy any of the factors enumerated above. We are not inclined to grant stay of demand and accordingly, the stay petition filed by the assessee stands dismissed.
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2019 (9) TMI 1662
TDS u/s 195 - disallowing expenditure representing remittance to a foreign concern by invoking Sec. 40(a)(i) on the ground that the requisite tax has not been deducted at source - whether the payments made by the assessee to Tekla Finland would constitute 'Royalty' as per the provisions of Sec. 9(1)(vi) of the Act and/or under the provisions of India-Finland Double Taxation Avoidance Agreement which governs the recipient of income? - HELD THAT:- Additional evidence now sought to be produced by the assessee does not enable the assessee to make out a new case but only would enable the assessee to support its assertions made before the authorities in an appropriate manner. Not only that, the Additional evidence will also enable Income tax authorities to determine the correct nature of the payments in accordance with the extant position of law.
The assessee has consistently been asserting that the Re-seller agreement is merely a back to back arrangement whereby assessee distributes the software products developed by its holding company. In fact the emphasis by the AO of the Re-seller agreement would be suspect to treat payments in the nature of royalty, if factually assessee is able to demonstrate that it has not undertaken any separate development in the software products on its own in the course of selling the product to the customer. Be that as it may, in our considered opinion, the aforesaid Additional evidence is germane and in the interest of justice it deserves to be considered while determining the tax liability of the assessee, qua the impugned payments. Of course, the said evidence was not before the lower authorities and, therefore, we deem it fit and proper to remit the matter back to the Assessing Officer, who shall revisit the controversy after considering the submissions put forth by the assessee and as per law. Thus, on this aspect assessee succeeds for statistical purposes.
Disallowance towards foreign exchange loss on account of restatement of trade receivables/ payables on the end of the year - HELD THAT:- AO as well as the CIT(A) disallowed the claim on the ground that it was a contingent liability. In this context, the Ld.Representative for the assessee relied upon the judgment of the Hon'ble Supreme Court in the case of CIT vs. Woodward Governor India Private Limited [2009 (4) TMI 4 - SUPREME COURT] to contend that loss was allowable as an expenditure in computing the total income. Our attention has also been drawn to the judgment of Vassantram Mehta & Co. [2015 (5) TMI 269 - BOMBAY HIGH COURT] wherein it has been held that the loss incurred on account of fluctuation in foreign exchange rate was allowable on the date of making of balance sheet and its allowability could not be postponed to a future date. In view of the aforesaid precedents, we find that the claim of the assessee is justified and it is ordered to be allowed. Thus, on this aspect assessee succeeds.
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2019 (9) TMI 1661
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- As per provision of Section 8(1) of Insolvency and Bankruptcy Code, 2016, an operational creditor on occurrence of a default is required to deliver a demand notice to which the corporate debtor is required to respond within a period of 10 days from the date of receipt of such notice.
As per provision of Sec.9 (5)(ii) clause (c) Insolvency and Bankruptcy Code, 2016 the Tribunal will reject the application if the creditor has not delivered invoice or notice for payment to the corporate debtor - the claim of receipt of money in May 20 16 is not evidenced by the documentary evidence of Banker’s Certificate or details of cheques or any DD Note details. Hence, this also goes against the claim of the operational creditor. In view of this, it is not considered necessary to go into other aspects.
This petition is dismissed.
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2019 (9) TMI 1660
Maintainability of application - inability of Corporate Debtor to liquidate its financial debt - Financial creditors - NPA - pendency of alternate proceeding under SARFEASI - existence of debt and dispute or not - barred by time limitation - HELD THAT:- The Corporate Debtor vide its letter dated 12.12.2018 approached the Financial Creditor for one time settlement of an amount of Rs. 15 Crore, thereby admitting its default, there is a finding that there is a continuous cause of action.
As per the averments of the petition no payment has been made by the Corporate Debtor after the default occurred in June, 2015 and as on date 27.11.2018, an amount of Rs. 46,63,35,337.31/- is due and outstanding. The present petition being filed in January 2019 is within limitation, being within three years from the date of the cause of action. Further even though an attempt was made on the part of the Corporate debtor to project certain inconsistencies in relation to claim amounts, however it is seen that the amount in default in excess of Rs 1,00,000/- being the minimum threshold limit fixed under IBC, 2016. Considering the circumstances this Tribunal is inclined to admit this petition and initiate CIRP of the Respondent.
Petition admitted - moratorium declared.
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2019 (9) TMI 1659
Clubbing the income of two public servants - clubbing of assets disproportionate to the known source of income - whether the Investigating Officer was under obligation to record explanation offered by the accused and whether such explanation should be part of the charge sheet and in that light a question is also raised as to whether the sanctions for prosecution were defective? - HELD THAT:- The impugned order would indicate that the High Court has not adverted to the charge made against the accused wherein the charge against the accused No. 2 is also of abetting the commission of offence by the accused No.1 and in that regard the conclusion reached by the High Court is not that the charge is not sustainable for the reasons recorded by it. In fact, neither there is any reasons recorded nor application of mind to that aspect. Insofar as the question raised and considered by the High Court, no credence whatsoever has been given to the case of the prosecution that the statement of the accused has been recorded which also forms the basis of the charge sheet and the explanation thus accorded by the accused does not provide satisfactory answer for the charge of disproportionate assets. In that regard the High Court has proceeded at a tangent and has on that basis also arrived at the conclusion that the sanction for prosecution is not proper.
Further it is noticed that the High Court has recorded that the statement of the accused made to the police during investigation is not admissible and the procedure adopted during investigation is found to be defective. Such conclusion would arise for consideration only during trial and if the statement made is retracted and there is no other material or evidence on record to establish the charge. Hence the very manner in which the High Court has proceeded to consider the matter is erroneous and the conclusion reached is unsustainable.
Appeal allowed.
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2019 (9) TMI 1658
Seeking permission to travel abroad from the Criminal Courts - it is submitted that the appellant has been travelling to various countries de hors the pendency of criminal proceedings - HELD THAT:- The contention of the learned counsel for the respondent would hold good as this country is facing lot of problems not only from external factors but also from forces, which are acting within the country. However, the fact remains that the appellant has travelled abroad for about 125 times and on all those occasions, he has returned back to India promptly and this is also admitted by the learned counsel for the respondent. When that is the case, there should not be any problem for the appellant to inform the Court concerned, give the travel details and thereafter leave the country.
Taking into consideration all the above factors, this Court permits the appellant to inform the Chief Metropolitan Magistrate, Egmore, Chennai giving the travel details and thereafter leave the country. It is made clear that this order is passed taking into account the conduct of the appellant and his prompt return to his home country on all 125 overseas trips undertaken by him in the past and this order should not be quoted as a precedent in any other case.
Appeal disposed off.
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2019 (9) TMI 1657
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The facts clearly reveals that the Corporate Debtor is liable to make the payment as guarantor but defaulted in making the payment to the Financial Creditors.
This Adjudicating Authority, on perusal of the documents filed by the Creditor, is of the view that the Corporate Debtor defaulted in repaying the loan availed and also placed the name of the Insolvency Resolution Professional to act as Interim Resolution Professional and there being no disciplinary proceedings pending against the proposed resolution professional, therefore the Application under sub-section (2) of Section 7 is taken as complete, accordingly this Bench hereby admits this Petition.
Petition admitted - moratorium declared.
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2019 (9) TMI 1656
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- After hearing submissions of the learned counsel for the Petitioner/ Financial Creditor and having perused the records, this Adjudicating Authority is satisfied with the proof placed by the Petitioner that default has occurred in respect of financial debt which the Corporate Debtor was liable to pay to the Petitioner. The Petitioner has also placed on record proof of sending notices and paper publication. The Petitioner has complied with all the requirements as stipulated under the provisions of the IB Code, 2016 for the purpose of initiating Corporate Insolvency Resolution Process. In these circumstances, this Adjudicating Authority is inclined to admit the instant petition.
The instant petition is admitted and this Adjudicating Authority order the commencement of the Corporate Insolvency Resolution Process which shall be completed in accordance with the time lines prescribed in section 12 of the 1B Code, 2016, reckoning from the day this order is passed - Application allowed.
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2019 (9) TMI 1655
Seeking transfer of the company petition to National Company Law Tribunal Bench at Ahmedabad for initiation of Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016, during the pendency of petition filed under Section 433(e) of the Companies Act, 1956 - HELD THAT:- The judgment in FORECH INDIA LTD. VERSUS EDELWEISS ASSETS RECONSTRUCTION CO. LTD. [2019 (1) TMI 1442 - SUPREME COURT] makes it very clear that in a winding up petition, even in which, notice has been served, any person could apply for transfer of such petition to NCLT under the Insolvency and Bankruptcy Code, 2016 and the same would and have to be transferred by the High Court to the adjudicating authority and treated as insolvency petition under the Code.
In the considered opinion of this Court, the learned Company Judge has rightly transferred the company petition to NCLT.
The judgment delivered in the case of Forech India Limited is a direct judgment on the issue, which is involved in the present company appeal. Hence, this Court does not find any reason to interfere with the order passed by the learned Company Judge.
The admission is declined.
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2019 (9) TMI 1654
Dishonor of Cheque - time limitation - sole argument of the respondent commended to the High Court was that a legal notice was not duly served on him within the statutory period - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- There are no manner of doubt that the reason commended to the High Court, is unacceptable. For, the fact that notice was duly served on the respondent or otherwise, is a triable issue; and cannot be proceeded as an indisputable position-as is expounded by this Court in Ajeet Seeds Limited vs. K. Gopala Krishnaiah [2014 (8) TMI 464 - SUPREME COURT] - the impugned judgment and order is set aside and the appeal is allowed.
Dishonor of cheque - legal notice has been served on the respondent within the statutory period or not - remark noted on the cheque return memo - HELD THAT:- The facts would require the parties to produce evidence and are triable issues, as expounded by this Court in Ajeet Seeds Limited vs. K. Gopala Krishnaiah [2014 (8) TMI 464 - SUPREME COURT] and in Laxmi Dyechem vs. State of Gujarat and Others [2012 (12) TMI 106 - SUPREME COURT]. As a result, even this appeal ought to succeed. The impugned judgment and order is accordingly set aside and the appeal is allowed.
Dishonor of cheque - service of legal notice within the statutory period or not - HELD THAT:- There are no manner of doubt that the reason which commended the High Court, in our opinion, is unacceptable, for the fact that the notice was duly served on the respondent or otherwise is a triable issue and cannot be proceeded as indisputable position as is expounded by this Court in Ajeet Seeds Limited vs. K. Gopala Krishnaiah [2014 (8) TMI 464 - SUPREME COURT] - appeal allowed.
Dishonor of cheque - legal notice has not been served on the respondent within the statutory period - remark noted on the cheque return memo - HELD THAT:- Both these facts would require the parties to produce evidence and are triable issues as expounded by this Court in in Ajeet Seeds Limited vs. K. Gopala Krishnaiah [2014 (8) TMI 464 - SUPREME COURT] and in Laxmi Dyechem vs. State of Gujarat and Others [2012 (12) TMI 106 - SUPREME COURT]. As a result, even this appeal should succeed.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1653
Entitlement to a Government servant to full pay and allowances during the period of his suspension - Rule 97(3) of the Bihar Service Code - HELD THAT:- The conclusions are summarized as follows:
(i) The competent authority is empowered to exercise the jurisdiction with regard to entitlement of full salary during the period of suspension for those who have already superannuated from the service, but while considering the claim, the principle mentioned in Rule 97 of the Bihar Service Code will be invoked.
(ii) If in the departmental proceeding, the Government servant has been fully exonerated, he will be entitled to full pay and allowances for the period of suspension.
(iii) In case the departmental proceeding has been initiated but, could not be concluded or was dropped or in any manner does not come to its finality, the delinquent Government employee cannot be deprived of his full pay and allowances on account of non-completion of the inquiry proceeding or non- submission of the inquiry report.
(iv) If the departmental proceeding has been rendered infructuous and not converted under Rule 43(b) of the Bihar Pension Rules and no inquiry report has been submitted, in that circumstances, the retired Government servant will be entitled to the entire salary.
(v) If the departmental proceeding has been initiated, the inquiry proceeding has been concluded and in case any substantive order has been passed after superannuation, which cannot be upheld on account of cession of relationship of master and servant, in that circumstance, the competent authority is empowered to take a decision on the principle of Rule-97(3) read with Rule 97(5) of the Bihar Service Code.
(vi) If the Government servant has been prosecuted departmentally and the order of punishment has been passed while in service and he has filed an appeal but by that time he superannuates and the appeal is remanded back on technical ground, in that circumstance, Rule-97 (3) read with Sub- rule (5) will play an important factor for entitlement of full salary during the period of suspension.
(vii) If the two members of the Division Bench record a difference of opinion, the reference would be made to the third Judge either Single or Division Bench in terms of Clause- 28 of the Letters Patent of the Patna High Court and the third Judge will confine his opinion to the point which has been referred and will not embark on the point or points not referred. After recording his/their opinion, the referee Judge will return his/their opinion to the referral Bench in terms of Clause-28 of the Letters Patent of Patna High Court and the point shall be decided according to the opinion of the majority of Judges, who have heard the case including those who first heard, whereupon the referral Bench would finally pronounce the judgment. In the event, the referee Bench decides the point apart from the point referred for adjudication, the opinion recorded by the referee Bench will be subject matter of discussion before the referral Bench and the decision of the Division Bench will be treated to be the final opinion on that point or points and the same will be treated to be the part of the judgment and in that event, the principle laid down in Clause- 28 of the Letters Patent of Patna High Court will not be applicable for deciding the majority opinion.
(viii) The contention of Mr. Mauli, learned Advocate, that the judgment of Dr. Lakshmi Narain Singh [1987 (9) TMI 431 - PATNA HIGH COURT] is a Full Bench Judgment, cannot be approved and accepted as the judgment has been delivered by Single Bench and not remitted to Division Bench for final approval. Hence, the said judgment is a Single Bench Judgment.
The notice dated 07.03.1995, issuing show-cause and the ultimate action taken by the respondent authorities vide order dated 30.06.1995, do not suffer from any patent illegality, irrationality or perversity and procedural irregularity - Appeal dismissed.
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2019 (9) TMI 1652
Approval of Revised Resolution Plan - revised plan has not been approved by the ‘Committee of Creditors’ - whether a case has been made out to exclude any period for the purpose of counting 270 days of the ‘Corporate Insolvency Resolution Process’? - HELD THAT:- Issue notice.
Tag with COMMITTEE OF CREDITORS OF AMTEK AUTO LIMITED THROUGH CORPORATION BANK VERSUS DINKAR T. VENKATSUBRAMANIAN & ORS. [2019 (9) TMI 1098 - SC ORDER]
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2019 (9) TMI 1651
Revision u/s 263 by CIT - Re-assessment order to be set aside as the AO had failed to consider and examine the relevant clauses of the agreement between the M/s. A.R. Rahaman Foundation and M/s. LEBARA Ltd., which clearly establishes that the assessee had received the remuneration towards his professional services - whether or not the Principal Commissioner of Income Tax had justified in exercising the jurisdiction of revision u/s.263 of the IT Act? - HELD THAT:- Admittedly, this issue was examined by the AO during the course of the re-assessment proceedings and took a view that the contributions made by M/s. LEBARA Ltd., are not taxable in the hands of the assessee since the same were assessed to tax in the hands of M/s. A.R. Rahaman Foundation. It is a matter of record that even the Ministry of Home Affairs, Government of India, had accorded post facto approval in respect of this contribution.
There is nothing on the record suggesting that it is taxable in the hands of the assessee. In these circumstances, we are of the considered opinion that the re-assessment order cannot be held to be erroneous and prejudicial to the interest of Revenue so as to enable the Ld. CIT(A) to exercise the power of revision u/s.263. Therefore, the Principal CIT was not justified in exercising the power of revision u/s.263. Appeal of assessee allowed.
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2019 (9) TMI 1650
Penalty u/s 271(1)(c) - Defective notice u/s 274 - non striking or irrelevant portions - as argued at the time of levy of the penalty the order u/s 271(1)(c) clearly show that the “assessee has furnished inaccurate particulars of income‟ in the first para of the penalty order and in the 3rd para of penalty order it is stated that the “assessee has concealed the particulars of income - HELD THAT:- In the show cause notice issued by the learned assessing officer u/s 274 read with section 271 (1) (c) none of the twin charges for initiating the penalty proceedings were struck off. Further, in the assessment order the penalty is initiated in the last para of the assessment order stating that the assessee has concealed the particulars of income and also submitted inaccurate particulars of its income. In the penalty order also at various paragraphs there is inconsistency with respect to the nature of default committed by the assessee. In paragraph number 1 the AO stated that assessee has furnished inaccurate particulars of his income. In paragraph number 3 AO states that assessee has concealed the particulars of income. In paragraph number 4 the AO states that the penalty is initiated for furnishing inaccurate particulars of income.
We are of the considered view that when the notice issued by the AO is bad in law being vague and ambiguous having not specified under which limb of section 271(1)(c) of the Act, the penalty proceedings initiated u/s 271(1)(c) are not sustainable. Even the AO has failed to apply his mind at the time of recording satisfaction at the time of framing assessment to initiate the penalty proceedings u/s 271(1)(c) of the Act as to under which limb of section 271(1)(c) i.e. for concealing particulars of income or furnishing inaccurate particulars of such income, penalty proceedings have been initiated rather written vague and ambiguous satisfaction recorded throughout the assessment order as well as penalty orders. - Decided in favour of assessee.
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2019 (9) TMI 1649
Maintainability of appeal on low tax effects - as argued tax case [2019 (5) TMI 1944 - CHHATTISGARH HIGH COURT] dismissed applying the Central Board Direct Taxes (in short “the CBDT”) circular dated 11.07.2018 whereby the CBDT has directed that the Department Appeals may be filed on merits before the Income Tax Appellate Tribunal, High Courts and SLPs/Appeals before the Supreme Court keeping in view the monetary limits for the High Courts.
HELD THAT:- Applying the circular, the tax case was dismissed however, the same circular also says that when the issue falls within the exception clause, the same shall not be hit by the monetary limit. Referring to clause 10(e) of the circular, it is argued that where the addition is based on information received from external sources, the exception clause would apply and the ceiling of monetary limit would not apply.
Having heard learned counsel for revenue and having seen the subject clause 10(e), it appears the same would apply where addition is based on information received from external sources in the nature of law enforcement agencies such as CBI/ ED/ DRI/ SFIO/ Directorate General of GST Intelligence (DGGI). In the case at hand the information on the basis of which this MCC has been filed was received from the Department of Sales Tax of the State of Maharashtra. Thus, the said information having not emanated from the CBI/ ED/ DRI/ SFIO/ DGGI, clause 10(e) would have no application.
In our considered view, the TAXC was rightly dismissed being hit by the Circular dated 11.7.2018 read with the amendment in the said circular vide subsequent CBDT circular dated 20.08.2018.
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2019 (9) TMI 1648
Estimation of income - Bogus purchases - CIT-A sustaining 12.5% disallowance - HELD THAT:- It is settled law that when sales are not doubted, hundred percent disallowance for bogus purchase cannot be done. The rationale being no sales is possible without actual purchases. This proposition is supported from honourable jurisdictional High Court decision in the case of Nikunj Eximp Enterprises (2014 (7) TMI 559 - BOMBAY HIGH COURT)
In this case the honourable High Court has upheld hundred percent allowance for the purchases said to be bogus when sales are not doubted. However in that case all the supplies were to government agency. In the present case the facts of the case indicate that assessee has made purchase from the grey market. Making purchases through the grey market gives the assessee savings on account of non-payment of tax and others at the expense of the exchequer. As regards the quantification of the profit element embedded in making of such bogus/unsubstantiated purchases by the assessee, we find that as held by honourable High Court of Bombay in its recent judgement in the case of principle Commissioner of income tax versus M Haji Adam & Co 2019 (2) TMI 1632 - BOMBAY HIGH COURT, the addition in respect of bogus purchases is to be limited to the extent of bringing the gross profit rate on such purchases at the same rate as of other genuine purchases. - Appeal of assessee allowed.
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2019 (9) TMI 1647
Grant of temporary injunction - order of status quo passed by learned trial court is set aside - Order 43 Rule 1(r) of C.P.C. - HELD THAT:- Grant of temporary injunction is discretionary and the appellate court will not interfere with the exercise of discretion of court of first instance except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions - It is apparent that scope of interference by learned appellate court with learned trial court’s order on temporary injunction application is limited. If two views are possible, then the view taken by learned trial court has to be maintained.
Hon’ble Supreme Court in the case of Maharwal Khejwaji Trust (Regd.) Faridkot Vs Baldev Dass [2004 (10) TMI 638 - SUPREME COURT] has held that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit a change of the said status quo, which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings - In the present case, the dispute is regarding a passage 7.5 ft. in width. Plaintiffs (petitioners herein) apprehend that the defendants ( respondents herein) will increase the height of the passage by laying concrete, which will result in water logging in the adjoining plots belonging to the plaintiffs and will also block the drain.
A perusal of the order passed by learned trial court indicates that learned trial court was justified in directing the parties to maintain status quo in order to maintain and preserve the property. Thus, learned appellate court was not justified in interfering with the discretionary order passed by learned trial court - Petition allowed.
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